Petitioner,
a federal prisoner, brings this Motion to Vacate under 28
U.S.C. § 2255. This matter is before the Court on
the Motion to Vacate under 28 U.S.C. § 2255,
Respondent's Answer in Opposition,
Petitioner's Reply, and the exhibits of the
parties. For the reasons that follow, the Magistrate Judge
RECOMMENDS that the Motion be
DENIED and this action be
DISMISSED.

Petitioner
challenges his underlying conviction, pursuant to his
negotiated Plea Agreement, on Count One of the
Second Superseding Indictment, conspiracy to possess
with intent to distribute heroin, in violation of 21 U.S.C.
§ 841(b)(1)(C), § 846. (ECF Nos. 248, 255.) On June
24, 2015, the Court imposed a sentence of 105 months
imprisonment to be followed by three years supervised
release. (ECF No. 287.) The United States Court of Appeals
for the Sixth Circuit summarized the facts and procedural
history of the case as follows:

In December 2013, Berryon F. Moore, III was indicted on
multiple federal charges related to the distribution of
heroin. He was released on bond. Moore was subsequently
charged in a criminal complaint with additional federal drug
offenses that he committed while on pretrial release in the
first case. To resolve both cases, Moore pleaded guilty to
Count One (conspiracy to possess heroin with the intent to
distribute the drug) in the first case and also admitted that
he had committed additional heroin-distribution offenses
while on pretrial release.

At sentencing, Moore advanced a sentencing-disparities
argument in support of his request for a term of imprisonment
below his Sentencing Guidelines range. The district court in
fact sentenced Moore to a below-Guidelines term of
imprisonment, but failed to specifically acknowledge
Moore's sentencing-disparities argument. During the
sentencing hearing, the court divided Moore's sentence
into two separate, consecutive terms of imprisonment: one for
Count One and the other for committing an offense while on
pretrial release.

Moore now appeals, claiming that the district court erred by
(1) imposing a sentence for committing an offense while on
pretrial release, and (2) not acknowledging Moore's
argument concerning sentencing disparities. . . .

I. BACKGROUND

A. Indictment and guilty plea Between 2010 and 2013, Moore
participated in a scheme to distribute heroin in
Steubenville, Ohio. An investigation by the FBI into this
conduct resulted in Moore's arrest in December 2013. That
same month, Moore was indicted on two federal counts related
to heroin distribution. Moore was then released on bond
pending trial. A second superseding indictment was filed in
October 2014, charging Moore with five counts related to
heroin and cocaine distribution. The conduct charged in this
indictment, as in the original indictment, allegedly occurred
between 2010 and 2013.

In December 2014, Moore was arrested again because he
continued to sell heroin while he was on pretrial release. A
federal criminal complaint was subsequently filed in a new
case charging Moore with offenses related to his 2014
conduct.

In January 2015, Moore entered into a plea agreement with the
government to resolve both cases. Under the agreement, Moore
agreed to plead guilty to Count One of the second superseding
indictment in the first case-which charged him with
conspiracy to possess heroin with the intent to distribute
the drug, in violation of 21 U.S.C. §§ 841(a),
(b)(1)(C) and 846-in exchange for the government's
promise to dismiss (1) the remaining counts of the
indictment, and (2) the criminal complaint in the second
case. Moore acknowledged that he faced a maximum term of
imprisonment of 20 years on Count One, and that he was also
subject to an additional term of imprisonment of up to 10
years under 18 U.S.C. § 3147 because he had committed a
separate felony offense while on pretrial release. Moreover,
Moore “agree[d] that because [he] committed the offense
of conspiring to possess with intent to distribute heroin
while on release in this case, pursuant to the statutory
sentencing enhancement under 18 [ ] U.S.C. [§] 3147,
pursuant to U.S.S.G. § 3C1.3 the offense level will be
increased by 3 levels.” A magistrate judge conducted a
change-of-plea hearing in January 2015, during which Moore
pleaded guilty to Count One pursuant to the plea agreement.
The government read the above-noted terms of the agreement
into the record during the hearing, and Moore confirmed the
accuracy of those terms. At the hearing, Moore further
admitted “that while on pretrial release . . ., he
committed the offense of conspiring to possess with intent to
distribute heroin.” The district court subsequently
accepted Moore's guilty plea.

B. Sentencing

After the change of plea, the United States Probation Office
issued a Presentence Report (PSR) that calculated Moore's
Guidelines range as 135 to 168 months of imprisonment. Moore
subsequently submitted a sentencing memorandum in which he
raised various arguments in favor of an unspecified,
below-Guidelines sentence. One of those arguments concerned
the need to avoid sentencing disparities between Moore and
his codefendants, and between Moore and heroin offenders
nationally. The government's initial sentencing
memorandum recommended a term of imprisonment of 135
months-the bottom of the applicable Guidelines range. After
defense counsel asserted that this recommendation was at odds
with their plea negotiations, however, the government
submitted an addendum recommending a below-Guidelines
sentence of 105 months of imprisonment.

The district court subsequently held a sentencing hearing in
June 2015. Neither Moore nor his defense counsel raised any
objections during the hearing to anything in the PSR. After
adopting the factual findings in the PSR, the court
acknowledged Moore's written request for a
below-Guidelines sentence. The court also recognized the
...

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